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[2022] ZAECGHC 31
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Wesbank (a division of Firstrand Bank Ltd) v Mzotane (1778/2021) [2022] ZAECGHC 31 (24 March 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, GRAHAMSTOWN
CASE
NO. 1778/2021
WESBANK
(a division of Firstrand Bank
Ltd) Plaintiff
and
ADV.
GOODMAN MYEKENI
MZOTANE Defendant
JUDGMENT
NQUMSE
AJ:
[1]
This
is an interlocutory application wherein an order is sought in the
following terms:
1.1.
The
defendant’s plea and counterclaim be set aside as an irregular
proceeding;
1.2.
That
the defendant pays the costs of this application and further and/or
alternative relief.
[2]
For
sake of convince the parties are referred to as they appear in the
main action.
[3]
The
background facts are succinctly set out in the founding affidavit of
Shakira Ahmed who states that pursuant the serving of summons
on the
defendant, arising out of an instalment sale agreement, the defendant
served a plea and counterclaim on the plaintiff on
22 July 2021.
Copies of the plea and counterclaim are attached to the founding
affidavit and annexed as SA1 and SA2 respectively.
[4]
The
plaintiff contends that the defendant’s plea is irregular in
that the defendant has failed to comply with Rule 22 (2)
of the
Uniform Rules of Court by admitting or denying or confessing and
avoiding all the material facts alleged in the combined
summons or to
state which of the said facts are not admitted and to what extent.
[5]
It
is further contended that the pleadings have failed to comply with
Rule 18 (4) of the Uniform Rules which require all pleadings
to
contain a clearer and concise statement of material facts upon which
the defendant relies for his defence.
[6]
The
plaintiff is also of the view that the counterclaim is irregular, as
it does not comply with Rule 25 read with Rule 19 of the
Uniform
Rules which require each pleading to contain a clearer concise
statement of the material facts upon which the pleader relies
for his
claim in order to enable the opposite party to reply thereto.
[7]
The
defendant has further failed to comply with Rule 18 (6) which
requires any party relying on a contract to state when the contract
was concluded, whether it was oral or written, and by whom it was
concluded and if it was written, a copy thereof must be attached
to
the pleadings.
[8]
The
plaintiff further states that according to Rule 18 (10) a party
claiming damages out in a manner to enable the opposite party
to
reasonably assess the quantum thereof. The defendant has failed to do
so.
[9]
The
plaintiff further contended that despite the (15) fifteen days within
which the defendant was required to remove the complaint
raised in
the preceding paragraphs, he failed to do so. Instead on 11 August
2021 the defendant filed a notice of intention to
amend both his plea
and counterclaim. This caused the plaintiff to file a notice of
objection to the two notices to amend. The
notice of objection was
served on the defendant on 18 August 2021.
[10]
Plaintiff
further contends that the defendant failed to bring the necessary
application for leave to amend to court within (10)
ten days as
required by the rules. Thus, it was contended by the plaintiff that
the defendant’s failure to remove the causes
of complainant
renders the plea and counterclaim irregular.
[11]
The
defendant in his answering affidavit which I must mention took me a
great deal of an effort to understand and to make out what
was being
conveyed, raised a point in limine which was to oust the jurisdiction
of this court from hearing the matter. In so doing
the defendant
places reliance on section 29 of the Magistrate’s Court Act,
Act 32 of 1944 which according to the defendant,
confers jurisdiction
of a monitory claim which is not in excess of R400 000 to the
sole jurisdiction of the district and Regional
Courts to the
exclusion of the High Court. It was contended that the plaintiff’s
action is a non-starter on that ground alone.
He also stated that his
intended amendment of the plea was to clarify the existence of a
motor vehicle a Mercedes Benz 220 which
has a history of many
possessors and which was part of the contract entered into between
the plaintiff and defendant.
[12]
In
paragraph 13 of his affidavit the following is stated: “
These
averments have no bearing at all as there were other intended
amendment to remedy the complaints this application stands to
fall on
as judicate which fall the application to be dismissed with costs.”
(sic). A reading of the paragraph above confirms the difficulty
alluded to earlier on the incoherent nature of the answering
affidavit.
In paragraph 16 the affidavit states “
Before
the expiring of (10) days the plaintiff brought another vexation
(sic) application setting aside a plea already filed a notice
to
amend it with its intend to amend counterclaim and such are further
delays by plaintiff for me to more Rule 28 (4) application
papers
which I am entitled to move by means of substantive application
(sic).
He
continues in paragraph 17 and states “
I
humble submit further that counterclaim as a defence is in line with
Rule 22 (4) of the uniform rules under practice defendant
could
properly plead that although the amount claimed by plaintiff was
owing and due, he was excused from paying because the plaintiff
was
owing and due, because the plaintiff owed him like or larger sum of
money which he claimed it by a way of counterclaim filed
simultaneously with a plea and this Rule is transgressed by the
plaintiff deliberately.”(sic)
[13]
In
paragraph 19 he states “
I
am advised herein that still substantive application in terms of the
Rule 28 (4) still applicable and I am intending to proceed
hereof
”.
(sic). In paragraph 21 he states “
This
application is a non-starter and stand to be dismissed with costs on
an attorney and client scale.
[14]
Before
me, Ms Sephton for the plaintiff sought the courts indulgence in the
condonation application for the late filing of her heads
of argument.
Mr Mkhongozeli for the defendant gave a neutral response and said he
has nothing to submit but leaves the application
for condonation in
the hands of the court. Satisfied with the explanation and having
taken into account that the delay was two
(2) days, the application
for condonation was granted.
[15]
Ms
Sephton further submitted that after the plaintiff was saved with a
plea and counterclaim, the defendant was served with a notice
of
objection in terms of Rule 28 (3) in which it was explained that the
proposed amendments fail to cure the issues raised by the
notice of
irregular proceedings which will result in the plea being irregular
and excipiable on the basis that it is vague and
embarrassing. Upon
receipt of the notice of objection the defendant’s attorney
acknowledged receipt of the said notice of
objection and advised
plaintiff’s attorneys that its objections are baseless in law,
the defendant has a bona fide defence
and intended amending its
plea, and further advised that the defendant will make an application
for leave to amend. But such
an application has never been brought to
court up to the stage of the hearing of the present application.
[16]
She
further argued that neither the defendant’s plea or
counterclaim complies with the rules relating to pleadings. The
notice
of irregular proceedings granted the defendant an opportunity
to remove the cause which he failed to utilise. When the plaintiff
objected to the amendment the defendant again failed to bring an
application under section 28 (4). She further submitted that the
defendant has no real intention to amend its pleadings instead he
defends vigorously the irregular pleadings.
[17]
In
his heads of argument and before me, Mr Mkhongozeli followed the
contention that this court lacks the jurisdiction to hear this
matter
on the grounds of section 29 of the Magistrate’s Court Act. In
amplification of this point he relies on the National
Credit Act, Act
34 of 2005 (the NCA) and the notice of determination in Government
Notice 670 of 29 July 2010, published in Government
Gazette 33418 of
29 July 2019. The notice referred to relates to the establishment of
regional courts for the adjudication of civil
disputes and for the
determination of monitory jurisdiction. The court asked from Mr
Mkhongozeli whether the pieces of legislation
referred to
specifically oust the jurisdiction of the High Court and what was his
view on the concurrent jurisdiction of the High
Court in matters
justiciable in the Lower Courts. His reply was an emphatic no, that
the High Court has no jurisdiction in such
matters.
[18]
I
find it apposite to dispose of this issue at this early stage with
reference to the
Standard
Bank of SA Ltd and Others v Thobejane and Others
[1]
and
Standard
Bank of SA Ltd v Gqivana N.O. and Another
[2]
where in both matters it was held that flowing from the principle of
concurrent jurisdiction the High Court is obliged to entertain
matters that fall within the jurisdiction of the Magistrate’s
Court. The court further held that there is no obligation in
law on
financial institutions to consider the cost implication and access to
justice of financially distressed people when a particular
court of
competent jurisdiction is chosen in which to institute proceedings.
This puts paid to the protest by the defendant against
this court’s
jurisdiction.
[19]
It
was further argued by the defendant that the plaintiff had approached
the court having concealed material facts and further accused
the
plaintiff of non-disclosure that there was a vehicle which the
defendant had used as a deposit when he concluded an instalment
sale
agreement for the vehicle that is the subject matter of the claim in
the main action. In the heads of argument, the defendant
presented a
long history regarding a Mercedes Benz referred to above which
according to the defendant on 16 May 2013 its ownership
passed to
Auto Mitsubishi. Where after on 17 May 2013 it was owned by Kokstad
and on 26 May 2014 it was under Business Zone 1841,
subsequently it
returned to Wesbank on the same date. On 7 August 2014 it was once
more under Auto Mitsubishi until 29 January
2015 when it changed to
Proxicron (Pty) Ltd until 2 February 2015. On 21 January 2021 it was
taken by Bankfin Potgietersrus under
Maritime Motors and is currently
owned by Zummelog (Pty) Ltd with its registration JY 657 GGP, from
its original registration which
was FFM 964 EC. This whole history
above by the defendant does not address the application before this
court nor am I clear as
to its relevance in these proceedings.
[20]
I
was also referred to a long list of authorities that do not address
the issue at hand but attempt to give a lecture on the Consumer
Protection Act, as well as the protection of consumers under the NCA.
Similar to the plea which is difficult to follow as well
as the
answering affidavit, I have to say respectfully that it was difficult
to make sense of the heads of argument of the defendant.
It was like
searching for a needle in a haystack. By way of example I was
referred to
Home
Fires Transvaal v Van Wyk and Another
2022 SA 9375
,
a citation that I battled to find until through patience I came
across
Home
Fires Transvaal CC v Van Wyk and Another
2022 (2) SA 375
where the paragraph I was referred to in the incorrect citation which
I confirmed in the correct one to read “
A
party will not be held by his signature to a contract which he has
not read where the other party knew that he had not done so,
was not
misled by the signature and only had himself to blame for the other’s
ignorance of the contents of the document”
.
I was also referred to
Dinner’s
Club SA (Pty) Ltd v Thornburn
1990 (2) SA 870
(C)
where
the court said “
A
signatory can be misled by the form and appearance of the document
itself.
”
There was no clear address on the relevance of the authorities
referred to in the matter at hand nor in what way are they
intended
to assist the court. The defendant further referred me to the
provisions of the National Credit Act, specifically section
90
thereof which prohibits an unlawful provision in an agreement. Once
again I have not been pointed to a specific provision of
the
agreement between the parties that is an infraction of section 90 of
the NCA.
[21]
Mr
Mkhongozeli, followed his submission in his heads of argument and
further submitted that the application before me is vexatious
in that
upon the defendant receiving a notice of objection dated 18 August
2021, the defendant wrote a letter explaining that the
objection has
no basis and intends to bring an application to effect the amendment
within (10) days. However, before the expiry
of (10) days the
plaintiff launched this application.
[22]
When
the court asked from Mr Mkhongozeli if there was any impediment which
caused the defendant not to approach this court with
an application
for leave to amend after it has been served with a notice of
objection. He said there was nothing preventing the
defendant except
that they were acting out of a good heart and thought the plaintiff
would reciprocate such kindness and would
discuss with them the way
forward. When he was squeezed by the court as to who had drafted the
plea of the defendant and whether
he had sight thereof. He said, the
plea was drafted by colleagues in his office but it had to come
through him to sign it off.
[23]
The
court further asked if the plea as it stands complies with the rules.
He conceded that after he had a relook at the plea and
the
counterclaim he has to admit that it does not comply and has to be
done afresh and he seeks an opportunity to do so.
[24]
The
court further asked, based on his concession why does he oppose the
application to set aside the plea and counterclaim and whether
the
net effect of the application does not allow the defendant the
opportunity it seeks to amend or redo the plea and counterclaim.
In
response, he asked that when the court considers costs against the
defendant, it should award costs on a party and party scale.
[25]
It
is trite that the purpose of pleadings is to define the issues for
the other party and the court
[3]
.
Compliance with Rule 18 (4) was illustrated in
Troope
v South African Reserve Bank
[4]
thus “
it
is of course a basic principle that particulars of claim should be so
phrased that a defendant may reasonably and fairly be required
to
plead thereto. This must be seen against the background of the
further requirement that the object of pleadings is to enable
each
side to come to trial prepared to meet the case of the other and not
be taken by surprise. Pleadings must therefore be lucid
and logical
and in an intelligible form; the cause of activation or defence must
appear clearly from the factual allegations made
(Harms Civil
Procedure in the Supreme Court at 263-4). At 264 the learned author
suggests that, as a general proposition, it may
be assumed that,
since the abolition of further particulars and the fact that
non-compliance with the provisions of Rule 18 now
(in terms of Rule
18 (12) amounts to an irregular step, a greater degree of
particularity of pleadings is required. No doubt the
absence of the
opportunity to clarify an ambiguity or cure an apparent in
consistency, by way of further particulars, however,
must in my view
still be whether the pleadings complies with the general rule
enunciated in Rule 18 (4) and the principles laid
down in our case
law
”.
[26]
The
concession made by the legal representative of the defendant puts the
question for the opposition of this application to bed.
The plaintiff
has established clearly that its application to set aside the
defendant’s plea and counterclaim is not misplaced.
It is my
view that it ought to succeed.
[27]
The
only issue I am left with to decide is the issue of costs. Ms Sephton
requested costs to be on a punitive scale more especially
in light of
the concession made by Mr Mkhongozeli that the plea had no defence.
[28]
As
already alluded this matter is badly litigated from its inception by
the defendant. The plea as well the counterclaim has been
badly
drafted far from complying with the rules of this court. Even when
this had been brought to their attention he continued
to litigate the
matter in total disregard of the rules of this court. Surely, the
legal representative of the defendant should
have been aware of the
defects and short comings in both the plea and counterclaim.
Nevertheless, no attention was paid therein,
only to concede at the
hearing of this application that the plea and counterclaim do not
conform with the applicable rules. As
if that was not enough, two (2)
days from the hearing of this matter the defendant filed an
application in terms of Rule 28 (4)
to move an application for
condonation of the late filing of its leave to amend which was set
down for hearing together with the
plaintiff’s application.
Once again this is an undeniable demonstration of the flagrant
disregard of the rules. I find no
justifiable reason for the
defendant to have put the plaintiff though the trouble of approaching
this court with this application
for which there was no defensible
opposition. I am therefore convinced that the defendant has to bear
the costs of this application
and be ordered to pay such costs in the
scale between attorney and client.
[29]
In
the result the following order will issue:
(1)
The
defendant’s plea and counterclaim are set aside as an irregular
proceeding
(2)
That
the defendant pays the costs of this application on an attorney and
client scale.
M.V.
NQUMSE
ACTING
JUDGE OF THE HIGH COURT
APPEARANCES
Counsel
for the appellant
: Adv.
Sephton
instructed
by
: Huxtable Attorneys
26
New Street
Grahamstown
Counsel
for the respondent
: Adv.
Mkhongozeli
instructed
by
: Mkhongozeli
Attorneys
c/o
Yokwana Attorneys
10
New Street
Grahamstown
Date
of hearing
: 10 March 2022
Date
of delivery of judgment
: 24
March 2022
[1]
(
38/2019 & 47/2019
(999/2019)
[2]
[2021] ZA SCA 92
(25 June 2021)
[3]
? v Reckitt and Colman v African (Pty) Ltd and
Another
1968 (3) SA 98
(A) at 122A; Imprefed (Pty) Ltd v National
Transport Commission
1993 (3) SA 94
(A) at 107.
[4]
[1993] ZASCA 54
;
1993 (3) SA 264
(A) at 273A